Latin American Music Co. v. Cardenas Fernandez & Assoc., Inc.

[Not for Publication - Not to be Cited as Precedent]

United States Court of Appeals
For the First Circuit

No. 00-1443

LATIN AMERICAN MUSIC COMPANY, INC.; ASOCIACION DE COMPOSITORES
Y EDITORES DE MUSICA LATINO AMERICANA (ACEMLA),

Plaintiffs, Appellants,

v.

CARDENAS FERNANDEZ & ASSOC., INC.; DAVID MALDONADO, D/B/A
DAVID MALDONADO ENTERTAINMENT; CFDM THEATRICAL PRODUCTIONS, LLC;
PABLO CABRERA; PROMOTORES LATINOS, INC.; CENTRO DE BELLAS ARTES
CORP.; CORPORACION PARA EL FOMENTO DE LAS ARTES Y LA CULTURA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Boudin, Stahl, and Lynch,
Circuit Judges.

Freddie Perez-Gonzalez, with whom Freddie Perez Gonzalez &
Assoc., was on brief for appellants.
Francisco A. Berosa, with whom Adsuar Muniz & Goyco, P.S.C.,
was on brief for appellees.
 February 23, 2001

Per Curiam. This dispute involves musical compositions

performed in the off-Broadway production of the play “Quien Mato

a Hector Lavoe?”1 (the “Play”) and subsequently in San Juan.

Appellants Latin American Music Co., Inc. and Asociacion de

Compositores y Editores de Musica Latino Americana, Inc. claim

that they own copyrights in several of the songs used in the

Play. They sought a preliminary injunction or temporary

restraining order to prevent any further performances of the

Play by appellees, the Play’s producers and directors. The

district court denied both the temporary restraining order and

the preliminary injunction.

In order to demonstrate entitlement to a preliminary

injunction, appellants must show that: (1) they will suffer

irreparable injury absent the injunction; (2) the injury will

outweigh the harm imposed on any defendant if the injunction is

granted; (3) they are likely to succeed on the merits of the

case; (4) the injunction does not adversely affect the public

interest. Planned Parenthood League of Mass. v. Bellotti, 641

1 Translated: “Who Killed Hector Lavoe?”

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F.2d 1006, 1009 (1st Cir. 1981).2 The district court correctly

stated this four-factor test, but denied the motion for a

preliminary injunction based solely on appellants’ failure to

meet the irreparable injury factor.

Under the ordinary four-prong test, it would normally

be sufficient for the district court to deny the preliminary

injunction on the ground that regardless of the likelihood of

success, there was no threat of irreparable injury, the

injunction was likely to damage the party subject to it, and

that the party seeking the injunction could be made completely

whole through damages if it prevailed.

However, in copyright cases, "irreparable harm is

usually presumed if likelihood of success on [a] copyright claim

has been shown." Concrete Mach. Co. v. Classic Lawn Ornaments,

Inc., 843 F.2d 600, 611 (1st Cir. 1988). This in no way

requires a district court to shut down a play on the eve of

production where, as here, there may be considerable doubt about

the strength of the copyright claims and some doubt about the

timeliness of the request for a preliminary injunction. But in

the face of an apparent threat of new productions continuing

2 Courts have extended the four-factor test to temporary
restraining orders. Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. Bishop, 839 F. Supp. 68, 70 (D. Me. 1993); Nation Magazine v.
Dep't of State, 805 F. Supp. 68, 72 (D.D.C. 1992).

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over a substantial period, it seems to us insufficient under

Concrete Mach. Co. simply to say that damages will redress any

and all harm.

The copyright claims in this case are complicated, and

nothing we say is intended to suggest a view that plaintiff is

likely to prevail, although this is likely to be the key issue

as to injunctive relief. Further, we do not know what

intervening developments have occurred as to play performances

(planned or actual) or as to the conduct of litigation since the

denial of temporary relief. Under the circumstances, we merely

vacate the denial of the preliminary injunction and remand for

further proceedings, including appropriate finding, under Fed.

R. Civ. P. 52(a)

It is so ordered.

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